tv Endrew F. v. Douglas City School District Oral Argument CSPAN March 27, 2017 10:06am-11:14am EDT
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c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cable television companies m it is brought to you today by your cable or satellite provider. >> last week, the supreme court unanimously ruled that schools must provide students with disabilities, educational programs beyond the minimum standard. the case centers on the parents of a special needs child in colorado who was moved from public school to private school. the parents then sued the public school system, arguing it did not provide adequate education. the case now heads back to the lower court with the supreme court's new legal standard for further proceedings. this oral argument is an hour. your argument this morning
in case 15827, endrewf. versus douglas county p school district. mr. fisher? >> mr. chief justice and may it please the court, the idea does not permit a school district to provide a child with disability a bearly more than dim inmust educational benefit. what the act requires is for the school to provide instruction and related services to the child at a reasonably calculated to provide substantially equal educational opportunities. the school district's primary response to our argument is that the standard i just described to you does not appear anywhere in the operative text of the idea. >> it also didn't appear in the original petition at footnote 8, where substantial educational benefit was the standard discussed in the petition. a significantly different one in your opening brief. >> mr. chief justice, we don't
intend it to be significantly different. what we do intend as we describe in the footnote as to give more detail as to how the standard works. >> the standard you are asking us to adopt substantially equal opportunity. that does appear some place. it appears in justice blackman's opinion in rally and the court, itself, did not adopt that formulation, substantial equal opportunity. are you asking us to adopt a standard that the majority already had before it and didn't adopt? >> justice ginsburg, yes, justice blackman proposed a standard similar to the one we offered the court today. that was 1982. congress has amended the idea twice in 1997 and 2004. in the findings and purposes, it now describes the way the act works with exactly the words i'm giving you, equal educational
opportunity. >> that raises a concern under the spending clause. the spending clause operations are pretty clear, the federal government proposes a deal to the states. if the state wants the money, they have to agree to these provisions. now, you are saying that the content of those provisions, though, has changed by new legislation. i just wonder whether that puts some strain on the idea that the states have agreed to these provisions but when they accepted the offer under the spending clause? >> no, i don't think it does. i think it is critical to get to the text for exactly the reason you say, mr. chief justice. we know from rally that there is a substantive guarantee in the idea. and we know from rowley, in 1982, the way the act was put together that, that substantive guarantee must track the way the iep provisions, individual educational program provisions work, 203 and 204 of rally. to get to the text and what the state agrees to, you start with the faith definition. the definition for free
appropriate public education. we all agree on that. sub "d" of that definition says that the school has to provide an education, quote, in conformity with the iep plan. then, to understand what that means, again, this is straight out of rally and straight out of the text, you turn to what the iep provisions provide laid out on pages 52-a and 53-a of the government's appendix. what they say in a nutshell over and over is that standards generally speaking for children with disabilities should be aimed at the general educational curriculum. what you do is you start with the general educational curriculum that applies to all kids. then, you identify the child's disability and how it impacts that child's ability to participate and progress in that general educational curriculum. >> how does that work with students whose disabilities
wouldn't allow them with their own potential to follow the general educational curriculum. i understand how it worked in rowley where you were dealing with someone with a particular disability but one that was rather readily and easily addressed. here you have a very dpififfere context. you would not say the goal was to progress consistent with the general educational curriculum? >> most likely not all the way up to grade level, in this case, mr. chief justice. that question, just as you asked me earlier, is expressly answered in the statute. on page 52-a, the bottom, sub c, c, what the iep provisions say is that for children with disabilities that take alternate assessments aligned to alternate achievement standards shall the description of benchmarks or short-term objectives are appropriate. the rest of the iep provisions describe how you set those goals to meet those alternate achievement standards. what the congress is referring
to, and let me emphasize, these are all from 2004, much post dating rowley. what congress is referring to with respect to alternate achievement standards are laid out at page 79-a of the government's appendix. these are the amendment toss the esea that congress enacted in the no child left behind act and have been aligned with the idea. if you look at page 79-a. there are four subdivisions, five subdivision that is describe what you do for the child, mr. chief justice, that you are asking about. perhaps the most important are sub 3 and sub 4. if you will permit, because the text is so important, i will read them to you. sub 3 says that the standards in this situation must, quote, reflect professional judgment as to the highest possible standards achievable but such students. what sub 4 does to complete the circle and make clear to the states and everybody else that this is required, it says those standards must, quote, be designated in the individualized
education program developed under the i.d.e.a. the question is expressly answered in the text and the i.d.e.a. to bring me back to our standard, substantial educational opportunity are the words congress used in the findings and purposes to incap sue late what is required by these i.e.p.s. >> i suppose it is implicit in your standard and some of the provisions you read that what we are talking about is the word reasonable that we see throughout the law. do you see any function for that word? in addition, as part of what reasonable is, is there any place to discuss the cost that would be incurred for, say, severely disabled students? >> let me answer both reasonable first and cost secretary. so reasonable, yes, is an essential feature of the act and in rowley, itself, the court
said that the plan that the i.e.p. team puts together needs to be, quote, reasonably calculated to achieve the level of educational benefit that should be guaranteed. so if you go into court or actually here you don't start in court, you start with a hearing officer. if there is going to be a dispute, what a parent has to show is that the plan the school adopted was one that no reasonable educator would have adopted. so reasonableness is an important part of the way a court would look at it, a hearing officer and, indeed, the i.e.p. teams. with specific reference to cost, let me say three things about cost, justice kennedy. first of all, the vast, vast majority of i.e.p.s and programs put together under the statute don't cost much at all. they involve things like providing braille textbooks and providing an ipad and specialized instruction by a staff member who is already on staff. there are going to be some extreme cases and the court saw one several years ago in the
garrett f case where a child with a ventilator needed full-time nursing services. the court quite clearly said that was going to cost $30,000 to $40,000, the act does not permit costs to trump what the act otherwise requires. the reason why, justice kennedy, is because congress expressly thought about this all the way back to the 1975 act, what congress said was, yes, it costs money. that's why spending legislation, we are giving money to the state. it is cheaper to provide services to somebody while they are being educated than it is to pay out of the public fisk for the rest of the person's life to make up for the deficit a bad education provides. >> the tab here is $70,000 tuition? >> justice ginsburg, it was more like $40,000 in the private school. currently, it is closer to the number you described. but the tab to put the child in private school, remember, the school district had an
opportunity to come forward with a proper iep plan to provide drew with -- >> in your view, what should have been done for this student? >> the first and most important thing that should have been done is what's known as a behavioral assessment should have taken place to figure out why drew's behaviors were so dramatically interfere wg h interfering with his education. all the peer review says it is vital. fist first thing the private school did. if you look at the plans that are laid out in the supplemental joint appendix, that was never done. what's particularly striking, justice kennedy, is that even after drew was in an emergency situation in the spring of his fourth grade year, put into private school, the parents came back to the school district six months later in november and said, now that we see he is
progressing and done a behavioral analysis, we would like to have him educated in the public schools, it is amazing that all they did was offer, and this pages 182 and 183, the exact same failed behavioral plan that they had been use ng the fourth grade. >> weren't they going to -- did the conference that the parents didn't attend, they had scheduled a conference and i thought a behavioral expert was part of that conference. >> there were two conferences, justice ginsburg, the first one in april of drew's fourth grade year, the same old plan was presented with no experts. they then offered to have another conference a month later in may but the parents decided at that point things had reached such a critical and emergency stage that drew was falling so far behind, they had to put him in a private school. they did not attend that meeting. justice ginsburg, what my friend leaves out of his brief is what i just described. the parents did return in the fall once drew had been
stabilized and did offer to meet with the school district. they brought no autism expert to that meeting. the plan that they proposed to deal with his behavior is verbatim the same plan they had offered back in the fourth grade. at that point, the parents had no choice reasonably but to leave drew in private school and to seek remedies under the act. there are going to be and i think this returns me to justice kennedy's question about cost. we recognize and congress recognized and this court recognized in burlington that there are going to be rare extreme circumstances where children are going to be put into a private school or otherwise need significant resources. . >> why didn't the statement, the iep, what it has to do is it has to, based on peer-reviewed research, when practicable, would be provided for the child to advance appropriately toward attaining the annual goals to make progress in the general
education curriculum and so forth. you have just described the describe as that, wouldn't that have been violated. if they wrote it that way, wouldn't you be able to go to court and say, there is the iep and they didn't live up to it? you already have two arguments under the statute. if we suddenly adopt a new standard, all over the country, we will have judges and lawyers and people interpreting it differently. so why isn't the present situation sufficient besides having nine people who don't know, at least speaking for myself, don't know that much about it, creating a new standard out of legal materials, which are at a distance from the people, the children, and the parents who need help? >> so i think the critical reason the court in rowley itself jestered towards meeting the need for an overall standard that incap sue lates the act and the reason why we asked for it
here today is that you will find in every brief in this case, our brief, the red brief, their amu ka briefs. they agree that the iep provision vs. to be followed. everybody agrees with that. the difficulty is that it just doesn't happen. >> i'm sorry if it doesn't happen. what are we supposed to do to make it happen? you have a statute that certainly seems to say that. you have a system for enforcement. how do us suddenly using this word equal. the word equal has history from a lot of different areas of law. whoo do y what do you do with a wide range of disabilities, a huge range in individual students? do you see what i foresee? i foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kind of things that are extraneous. that is what's actually bothering me.
>> let me address, say a word more about why we need a standard and then i'll say something about the lawsuits, the question that you raise. so, first, we need a standard because the act is best to incap sue late what the iep provisions inquire. if you don't like the word equal, i'm giving you the word that congress used when it amended the act. very much this court said very much the same thing in rowley when it said in the general situation, a child's plan should be tailored to allow her to advance from grade to grade. if you don't want to use the word equal, here is what we would suggest, justice bri yor. you can say as a general rule, the iep provisions and the requirement of the act demands a level of educational services to design to allow the child to progress from grade to grade in the general curriculum. >> suppose we have a child who is a handicapped child, a range of people and they can't do much for them but they can do something for them. if they can do something for
them, do it. if you say measure that in terms of their ability to progress from grade to grade, maybe some will, some won't. it seems to me the word appropriate try toss recogniies that. you can't ask for more than is reasonable for them to do. what words do we use? >> at bottom, we agree there is flexibility in the act to accommodate each child's individual and potential and needs. if i could give a full answer to your question, we think it would be fine if the court just said, the iep should be tailored to achieve in the general educational curriculum at grade level for most kids. when that is not possible, justice breyer, you have the alternate achievement standards according to the language at page 79-a. it is all straight out of the text of the act. it is a more complicated way of putting it. >> it makes a big difference whether you take the word eout.
>> justice alito, i am describe whag it means for an equal educational opportunity. >> i understand what an equal outcome would be. i don't understand what an equal opportunity means when an equal outcome is not practical. >> whether you an you are deali child that cannot get to grade level, what it means you are giving children with disables equally challenging curriculum on the academic side and in terms of their functional and developmental goals. the standard is highest possible standards achievable directly in the text of the statute. >> for those of us who have some feeling that the word equality is a poor fit for this statute and its focus on individuation.
what would you say to us? >> i would say what the court said in rowley for the typical child with a disability who can achieve at grade level, which is the standard the school district has to try to meet, is progress in the general educational curriculum at grade level. and then dealing with a child who is not going to get there equally challenging or justice kagan, i would say, alternate achievements, benchmarks to use the words in the standard that are the highest possible achievable by the student. those are the exact words at page 79-a of the statute. if coy reseri could reserve ther of my time, please? >> thank you, counsel. >> mr. gornstein. mr. chief justice and may it please the court, the
requirement of a free, appropriate public education is not satisfied with a program that aims at barely more than de minimis progress. what it requires instead is a program that is aimed at significant educational progress in light of the child's circumstances. >> how does your formulation differ from the one we were just offered by mr. fisher? >> i think we would take the same position with respect to amy and similar students. it is grade level competence for students that are in the regular classroom or in the general curriculum. >> we are talking about somebody for whom i think you would agree that that standard doesn't apply? >> right. that is where we have a slight area of disagreement. we would say significant progress towards grade level standards not as close as possible to grade level. >> how about meaningful instead of significant? >> we are not committed to any
one particular terminology. we think that significant is synonymous with meaningful or progress that meaningfully can be expected. >> meaningful was used in rowley sgchlt wi . >> of all the terms, i will give you one more that is appropriate in light of the child's circumstances. the only one i would urge you away from actually is meaningful and the reason is it has baggage in various courts of appeals. it means different things to different courts. it has been applied in different ways by different courts. i would urge you to pick, although we think that captures something sgchlt will we c something. >> we should come up with our own that be can applied in different ways and different can courts. >> i think the important thing is to say it is not a bearly more than de minimis and not a max zation standard. i would leave it to you to
choose any of those adjectives. >> you say leave it to us. you represent the department of education here. they at least have experience with it. we have far less. obviously, i'm relying and must rely on people who have connection with expertise. i don't want to do something that uses words that has effects that i have no idea. so i go back to look at two words. the iep is filled with the word progress. there are several. so the word progress seems like something that should be there. then, the other word that you see a lot is appropriate. now, you have taken that word appropriate and spelled it out in light of the student's particular needs and abilities. i any thatthink that's what you doing with appropriate. significant and appropriate, does that matter? >> we are happy with that. one of the formulations. >> you look into this and you don't see anything wrong with
sticking in the word appropriate? >> we do not. >> the other thing i looked at in yours, you say the school requires school district toss provide. when i see requires school district to provide, i begin to think everybody is going to start suing about whether they did provide. so i'm thinking well maybe it should be something like reasonably calculated to provide? >> we agree with that. that is what rowley said and that's what it means to require. it is a program that is reasonab reasonably calculated to make significant education in light of the child's circumstances. >> for all of us who might be a little slow, tell me what the new standard you are proposing is. i don't mean to be buying into your adversary's position. i do think the act provides enough to set a clear standard. the words are what we are trying to come to that would be less confusing to everyone. >> one formulation that i think would be consistent with what we are saying is reasonably
calculated to make progress that is appropriate in light of the child's circumstances. >> how does that actually work in practice? i understand the rowley standard. you are dealing with somebody who has a disability that is rea readily addressed so they can keep track with grade progress. if you are out of that realm where that is not realistic in light of the child's potential, how do you decide whoo it iat i? you are sitting down at the meeting. how do you decide? >> the i.p. provisions tell you where to start. you look at where the child currently is in terms of academic performance. what are their present levels of achievement? to what extent is this impeding progress in the general
curriculum. then you make an estimate. >> is there somebody at that meeting. >> you have educational experts who will say, make an estimate of how much progress towards grade level standards that child can make in light of where they are now and the nature of their disability. >> you are still tied to grade level standards. in many situations, i would think those would largely be irrelevant. >> here is what we mean by that, mr. chief justice. you start with the grade level standard but then you see the building blocks that are mitting underneath those grade level standards and you set those out. if you can't multiply and you can't add and multiplication is the standard, maybe you need to learn how to add first. you set forth what are the building blocks that the child is missing? >> i assume everybody needs to add before they learn how to multiply? the basis of my concern that is it seems to me even though you
have a lot, because you have a lot of different adjectives to describe the standard, that there is really nothing concrete there. when you are asking the courts to undertake judicial review, it is not clear to me exactly what they are supposed to do? >> it is appropriate in light of the circumstances and we think this is just what most school boards are already doing. i agree the concern is with court enforcement of the standard and the risk of court overinvolvement in educational decisions, but the response to that is not to adopt a bearly more than de minimis standard that nobody purports to apply, but to say the court's role is limited to ensuring that the state's program for progress or appropriate progress is based on reasonable educational judgment. >> do you agree with mr. fisher that cost has no place in this calculation, no matter how expensive it would be and no matter what the impact in let's say a poor school district would be on the general student
population, costs can't be considered? do you think in the real world, school boards are disregarding costs entirely? >> so they are not disregarding costs entirely. there could be two different programs, both of which are reasonable and they would take into account costs surely in deciding which of those reasonable programs to adopt. but more generally i would say the answer is, no, in the usual case. from cedar rapids, that's what the court said is that you can consider costs in deciding what the standard should nb the first place. costs can define what the standards are. congress obviously knew when it passed this law that there were going to be some significant expenses associated with some kids. that's why it gave money and made it an opt-in program. at the very least, it seems to me cedar rapids and the structure of the statute tell you that in the usual case, it
can't be cost o -- >> do you know what percentage of the funds are paid by the federal government? >> i think it is like 15% or something like that. >> federal government pays 15%? >> i think it is something like that. i cou that. i could be corrected. they realized they were going to give money and made it an open-ended quhois for the school district. >> do you think that cost should be measured against the possible results to be achieved? >> not in the usual case. i think congress took costs off the table in the usual case. i think in the extreme case, you would do exactly what you are talking about. you would say for very little gain, for extreme cost, no. not appropriate? >> not appropriate, yes. >> that's not the case in this case. >> the school district in this case hasn't raised a cost defense. >> more importantly, the cost
gave significant progress. >> the cost did give -- i'm sorry? >> the cost of the private education resulted in significant progress? >> it did result in significant progress. i'm not sure the benchmark is what is to be achieved in a private school. i think as long as the school district's plan makes significant progress or appropriate progress towards grade level in light of the child's circumstances, that's all we have to do. >> here, even by the tenth circuit admission, that was barely de minimis progress. >> i think what the court of appeals said, the only thing it said, there was a free appropriate public education, because drew had made minimum progress on some of his goals in the prior years. that's clearly not enough to meet the standard we are talking about. >> if the court has no further questions? >> nathank you, counsel.
zu mr. katyal. >> to prevail, my friends have to overcome the spending clause, which requires any standard be imposed unam big lusly. second, they must overcome rowley, which found far from a clear statement that the statute was noticeably absent on a substantive standard for the level of education, including any standard based on equality. third, they must overcome the fact that with each amendment to the idea, congress has reaffirmed its faith in the procedure protections and sus stem mick requirements without touching the substantive standard? >> what were you told he was referring to 79-a of the government's appendix? >> he has two different arguments, justice ginsburg,
about the changes to the amendments. we think neither of them are going to come close. first of all, nothing is inambiguous as the spending kla claus requires. these are procedure changes in 14-i. 14-d and 1400. the best barometer is that it has taken into mr. fisher's creativity for any court to entertain the notion that the '97 or 2004 amendments change the standard. he has not a single case to cite. >> the procedure standard certainly are the measure by which a court can determine whether or not the procedures were adequate? >> absolutely, justice kennedy. >> why doesn't that automatically make these part of the standard? >> we do any it makes them part of the standard, part of the procedural standards. that is to say we agree with them that in 1997 and 2004, congress changed the ida in a
significant way. >> do you agree the procedures have to meet these standards? >> absolutely. >> to the extent the procedures aren't met -- >> then i don't understand your disagreement with mr. fisher. >> it is very large. we think these are a procedural checklist. >> are they not subject to judicial review to see that the procedures were followed. >> absolutely, justice kennedy. we agree with that. that's what congress had in mind. you have to go through the checklist. it's very detailed. supplemental appendix 131-142, until the court has considered those things. so long as the iep process has considered those things. >> the procedures, as i'm sure you will agree is geared towards something, the provision of a free, appropriate public education. the act, it sets up. this is why i can't readily
agree with your understanding of the procedures. we have to make sure the procedures are followed. the act sets up an administrative process. it says, when you have disagreements about the provision of this, you go to the administrative process. what does the hearing officer do? i'm going to read you subject to another exception. a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free, appropriate public education. so that's what the dispute is ultimately going to be about. it might be about some procedures along the way and maybe it will be solved just by saying follow the right procedures but often not. often, what the hearing officer is told to do, shall do, is to decide on substantive ground, whether a child has received a free, appropriate, public education. >> we don't disagree with a lot of what you said. that is to say we do think and
rowley is very clear on is this, there is a substantive standard in the ida. it is just a some benefit standard, and there are nine different standards we have heard in the last half hour that the petitioner and the government are saying. it is some benefit. we do think there is substantive review. that's what that petition is about. that says there can be procedural review. >> it is solo a low and easy to meet. you justify that, don't worry about it, it is all in the process. this provision, the idea of what a hearing officer is supposed to do and a court is supposed to do says it is not all in the process. there is a question of whether a student is receiving a fape. >> we disagree in two different respects. the experience for 34 years since rowley, almost every circuit, the government and petitioner agree, whether it is 8 or 10 circuits, have been applying some benefit standard.
and, indeed, their own reply brief admits and says, actually, schools are doing fine. to the extent you are concerned about some really low standards in the court, that's not what's materializing and you look at case after case on the asa brief in page 24, three cases using the benefit standards. there is case after case saying this is not some totally minor standard. it says some benefit. >> you are reading it as saying some benefit and the other side is reading it as saying some benefit. and it makes a difference. one reason it is problematic for you is because rowley doesn't say, some benefit. it tells you what it is. it is enough benefit to keep track with grade progress. if that's what the standard is, that's certainly slightly more than de minimis. obviously, you can't take that actual substantive standard and
apply it in a case such as this. it does seem to indicate there is a substantive standard. it is not just some benefit. >> our position is rowley doesn't say that it has to be grade level progress. it says you have got the word appropriate in 21. it reflects it's recognition that some settings are simply not suitable environments for the participation of some handicapped children, not as a term of art which previcecisely expresses the standard. >> there are lots of different ways of trying to understand what the sftatute means. rowley said the way for the court to understand it is spending clause legislation. the state entered into a contract and they need to know the terms of the deal. to the extent there is any ac big uity, rowley was clear it is just some benefit. that is a natural thing it follows from the presumption. >> you think some benefit is ambiguous. >> i think there is a little bit
of ambiguity. it is easier to administer that question. justice ginsburg, let's just say this is the way ordinary english works. if i have a duty to benefit you, justice ginsburg, if i give you no benefit, courts can easily review that. given no benefit, i have fallen down on my duty, i have given you some benefit, i have met my duty to benefit you. >> some you say is more than de minimis? >> exactly. >> that can't be just to finish that thought, it can't be that the standard is, if i benefit you significantly, that's the standard or if i benefit you equally with your colleagues or something like that. that's all adding word to the statute. >> where is it? as i see, one way of looking at what we're doing, two things have occurred. one, rowley, itself is somewhat ambiguous. it deliberately doesn't say how much. that's why you get the ambiguity. the second thing that happens is the statute is amended.
what we're doing is going back and looking at those somewhat ambiguous words in rowley in light of a statute that was amended. when you look at the statute that was amended in the iep, you do see in at least two and maybe more places that that iep is designed to be awe statement that will produce, meet the child's needs to enable the child to be involved in and make progress in general education and further advance appropriately toward annual goal to sel s to make progress in the general education. what they have done is go back and take those words, make progress, and put them in a phrase which, in fact, with not much modification, says, look, let's read what rowley said in light of these additional words, make progress, which are statutory words, while taking account of great differences by using words like appropriately,
in light of the students particular needs and abilities and those all come from the statute. >> three things. number one, we don't agree that rowley is ambiguous as it has been interpreted for 34 years. indeed, they can't cite any cases showing that there is any problem. the reply brief admits that things are working just fine. the idea there is some need for this court to get involved and clarify rowley. i think there is no case law or anything to support that. second, the idea that the amendments somehow change the game i think is not nearly enough to be the clear statement that pen hurst requires. this isn't just elephants hidden in house holes but elephants hidden in romanette mouse holes, sub sepgs d, romanette 2. >> would you agree that at least the court should say that the formulation is more than de
minimis sets the level too low? that's the formula that we should use? >> we disagree with that. we think more than de minimis, which is what almost every circuit is using right now has worked and it follows naturally from the sum benefit language in rowley. >> you might disagree. >> you are equating some benefit to more nan? >> more than de minimis. we think it means the same thing and we think there is a long history of experience with this showing that it is working and return justice breyer to a point you had made before. there is some concern about the standard. that has to be up to congress. if this court were to change the standard, it would invite all sorts of litigation. look at what mr. fisher said. first, his petition started with a substantial equal opportunity standard. then, it became in his merits brief, an equal opportunity standard and then tailored to achieve at grade level. >> let's say that during the
school year the school district sends someone to work with the particular student in this case and they send her there for two weeks. she goes around. that's it. that's all they do. that's some benefit. better to have the person there for two weeks and not at all but you wouldn't say that satisfied the statute. >> it does not. as our brief explains, there are two different provisions, 14, 14, br and c-5 a, which explain the benefit from special education must be continuous. cedar rapids said that. >> complaining the hypothetical. she is there five minutes a day. >> five minutes a day wouldn't meet the de minimis standard. that is that itself is not a significant -- that is not some benefit. >> i guess somebody has to tell us whether it is beneficial and yet i think most people would
agree that -- are you saying that the judicial review is supposed to be whether that is de minimis or more than de minimis and they are supposed to say a half hour is good. that is not de minimis. >> i am saying two different things. one, ultimately, if we got there, that it could flunk substantive de minimis review. you wouldn't get there. congress' whole judgment was to put the emphasis on procedural protechs in the act. they bolstered them in '97 and 2004. as long as they could shine a light where they trusted teachers and parents who are highly incentivized to come. >> you are assuming that the procedural process will yield significant results. what if they do the whole ning, thing. we have a hearing, everybody comes in. we bring the expert in. the expert says, you need to have somebody there six hours of the day to help the child learn. they say, okay. that's the procedure. we listen to you. in fact, we are only going to
have somebody there a half hour a day. >> i am assuming that it is in general going to work, which is what rowley said at page 206 of its opinion that. was congress' judgment. i agree you can give me a hypothetical which says in some case the procedures aren't going to work and there is going to be a bad result. no system is perfect, not even a judicial system as the aur roar corrections rules of this court recognize. i think the question for the court is, should you kind of rejigger the statute and impose a new standard? >> you'll have to excuse me. i'm not sure i understood your answer to the chief justice. he had a hypothetical where you have the hearing and the hearing makes a recommendation. recommendation not followed. what result? i thought i heard you say well the procedures were followed. that's good enough. >> i might have misunderstood. i thought it was a five-minute service things. if it is not followed, everyone agrees there is judicial review. the iep is a contract that recites the provision which says you can come in and enforce the
iep. i don't think there is any disagreement about that. i understood if to be about some really low level of benefit. rowley says there is a some benefit the last year alone about that. the question is, in spending clause context do you want to actually impose something new. mr. goran stein gave three different reviews, and his merits brief. >> whether do you get benefit from? >> page 200. >> from rowley itself on page 200. >> what do you do with meaningful? >> meaningful is not -- the court there mentioned meaningful once only to say it can't be more than meaningful. it doesn't adopt that as standard. there is baggage as said. but the important baggage is what this court said in cedar rapids which is that meaningful access doesn't require a particular level of education. >> right. >> that's what we have. we have now.
we have words you mentioned. they are in old cases. as was just pointed out. those words, some -- some -- some benefit. you could say some benefit. or you could say some benefit. all right. now, that's an ambiguity. as you point out, most courts have interpreted what i think is the correct thing. they say benefit. okay. and you say there is no problem. >> okay. >> there is really no problem. but still a problem with the language if handful of courts. now we have an iep statute which again and again and again looks to progress. so why is it making something up out of whole cloth simply to take that word from the iep which is forceable anyway and say look at these two words of ambiguity and we think we should interpret them in light of the iep requirements which are pretty close to what sg suggest. >> don't think there is some problem in the lower court. they are not citing cases that
say there is some parade of horribles akin to the hypotheticals that we have heard. and congress's judgment is that the procedural protections will do a lot at the front end to avoid that problem. there might be a situation at the back end. but that's where systemic requirements of the i.d.e.a., no child left behind are so important. what they say is that the department of education can cut off funds, redirect fund, require annual reports. all sorts of things happening. indeed annual reports required since 2004 to congress. congress never changed the statute in the way they want. substantive standard change. and again, their own brief on page 19 and sg's brief admits standard is generally working. teachers are teaching to the top. >> what is fraig about this case and about this statute is that we have a blizzard of words. if you read them literally, it is not clear to me that they mean anything different. progress benefit. i don't see how can you have a benefit unless you are making
some progress. significant, meaningful. they are synonyms. if something is significant or meaningful, it is more than de minimis. if it is more than de minimis, you could say it is significant. it is something you note. so it's really -- i mean, everybody seems to be looking for is the word that has just the right nuance. to express this thought. to express this thought. >> we think that you should look to what rowley did here, which is to say the word is some benefit. that actually follows from the text of the statute itself. there is a long presumption of justice alito, which the sourt set applies to all statute. we think our standard comes from the text. but there is no cannon but significance or equality -- >> what is the difference -- >> i think it is quite large. if the court is to ask if there
is some benefit, as i was saying to justice ginsburg in my hypothetical, has the school district benefitted. but once we get beyond that to significant, the court has to ask both. was there some benefit. and was that benefit significant. i can imagine a variety of -- >> it didn't just say some benefit. it said that benefit would normally allow a student with a disability to keep up with his peers in a different grade. now as soon as they say that, you appreciate that you are dealing with more than just some benefit. that's a significant benefit. significant -- significant, meaningful, whatever. more than simply de minimis. it suggests that you can't just look at something and say, here, that was helpful. because the whole package has to be helpful enough to allow the them to keep up with their peers. >> i don't think that what rowley said. when it used grade to grade. the grade to grade was to say procedurally they have to
consider that that and make sure that a high school kid isn't put in first grade. i don't think that part of the test. and several times rowley rejected the -- >> how does your position, you the idea if there is any sort of level -- >> how is your position -- page 47, which says an iep must have the goal of advancing a child in the general education curriculum and to the extent possible enable her to be educated in the school's regular classes. to me that sound exactly like what the chief justice just said that an iep has to be reasonably calculated to do those things and if it's not, then -- >> again, i think it is procedural guarantee they have to think about and consider grade level progress. not any sort of substantive standard. >> this is not just a procedural guarantee. yes, the i.d.e.a. has a lost procedures in it but they are all geared toward a particular substantive result. and it's that substantive result
that's the focus of the -- both the administrative process and then judicial review of what comes out of the administrative process. >> i don't think justice kagan. i think all those standard say is what an iep must address. not how an iep must deal with them. if you look at a second circuit recently in a case called l.o. versus new york city, just a couple months ago, decide -- basically went through this and said the 1414 standards like that are checklist. you've got to consider grade level progress and things like that. >> but if we consider all of them and do none of them, that's just fine? >> congress's judgment is the process -- this something that happened in -- >> so your answer is yes. if you consider everything but do nothing, that's okay? >> no. because there is still -- if you do nothing, then you haven't provided any benefit. so there is still some substantive bite in the standard of rouly itself. what we're saying is in the context of spending clause legislation, you can't do more
than that and require something significant. the reason, justice kennedy, once you go into significance, education is one of the more contested areas in our society. parents have been known to disagree. there's more acronyms about lawsuits, this new fangled theory or 30 hours versus 35 hours being significant. and you get into a huge morass. and in san antonio versus rodriguez, that kind of thing and educational context is not where federal generalists courts should be. now i suppose you could say maybe that not the right policy. maybe you know, some is something that should happen. courts should get involved in this. that's really got to be something for congress to make. and something they say clearly of spending causal legislation. rowley expressly said the pen hurst principle applies to this provision of the statute. this is core legislation. a core requirement of the statute and they are imposing any number of different standard.
i understand there is some policy concerns among the court even if they are not shared by my friends on the other side because they disclaim them. but to the extent there are policy concerns, that has to be something congress deals with. >> one aspect of your position is you say yes there is a substantive benefit. substantive standard. some benefit. and then in the course of your argument, you say some, as interpreted by most courts, has bite. but then you say, de minimis. is enough. more than de minimis is enough. so some with bite and more than de minimis don't sound like equivalents to me. >> i think they are and i think that circuit after circuit have said, which is that some educational benefit, the language in page 200, means more
than de minimis. more than de minimis. i think there is a whole variety of cases that interpreted this. even this court had one in florence versus carter, that came from a circuit which had more than de minimis standard. the court there found that iep substantively didn't meet protections of some benefit. >> how does it actually work? now suppose a school district writes a statement called an iep then it says what an iep is. and one of the things it says an iep is, is a statement of the services, et cetera, based on peer review stuff that will be provided for the child to advance appropriately and to make progress in the general education curriculum. now suppose a district writes a statement called an iep, but it
does show the child is likely to advance. can't they go to the administrative thing and then go to court and say to the judge, look, they didn't write what they were required to write. >> absolutely. >> okay so they have to write something that will be -- let's suppose they write but they don't do it. >> yes. >> now, doesn't something say you have to follow the iep? >> correct. >> so again they go to court? >> correct. >> and they didn't follow the iep. >> correct. but what there is not is something in 1414 which says they have to provide a significant benefit. >> but they have to provide something that makes progress in the general curriculum -- and -- >> they have to follow the check list that is a statement -- >> and advance appropriately. >> there must be a statement, yes. i think everybody agrees they look at outcome. it's just the same as rowley. we're not saying anything different than what rowley says. >> oh, i would say, if you take
rowley as meaning or whatever the two words were -- beneficial -- what's the one before beneficial? >> some benefit. >> some educational benefit. if you say some, this is inconsistent rowley. >> i don't think so. it has to be some educational benefit designed to get the general education curriculum. >> in the wake of the many years this act has been enforced and these many individuals, have there been -- documented areas to consensus as to certain standards, certain methodologies, certain systems that work, certain that don't? and do the courts in reviewing these proceedings ever refer to those? >> i think that's where the amici is important. they say education isn't really one of those areas. people disagree about the most simple things about education.
>> we have gone nowhere. >> i don't think we've gone nowhere. but i think worry is thrusting courts into the business of deciding which philosophy is appropriate. take firefly -- >> you say there is no consensus as to appropriate methodologies for say a hearing impaired student, autistic student -- no agreement on -- >> i don't mean to say there is no agreement. i do mean it say the amici briefs and cases say there is disagreement and rowley says this picking up on san antonio versus rodriguez, that congress's judgment is not to thrust courts into these really highly very difficult considerations. if i could just give you one example, talking about justice sotomayor, you're on vacation on firefly. it's absolutely right, there was progress made. but there was also a lot that was given up. one of the core purposes of the i.d.e.a. is mainstreaming. and, of course, firefly is not a mainstream school.
yes there is behavioral problems addressed by the private -- >> can i go back to justice ginsburg question that i'm confused of for the same reason. you said something like, well this standard is being applied with bite. do you favor a standard with bite? >> we favor the standard which rowley said which courts have done for 34 years -- >> do you favor a standard with bite? >> it does have some bite. >> would that be some bite? or some bite. >> it is some educational benefit. that's the language of rowley. and if you disagree with it, congress -- >> well, again, if somebody said to you, write a standard with bite, i doubt you would come up with the words more than merely de minimus. >> the substantive bite is at the back end. a feature in a much bigger statute. congresses a statute -- >> and that's what this case is all about. we are at the back end.
>> but justice kagan, don't take the policy concerns about the hypotheticals to rejigger the back end. congress's handiwork is to say procedural protections shining a light, iep with student, with highly incentivized teachers and parents that's generally going to yield the right result. that's what rowley said in page 206. >> we have to use musical notation, not just words, to express the idea that seems to be emerging. would you say -- i'll ask the same thing, mr. fisher, if he has a chance to address it. if we were to look at what the lower courts have been doing, we don't see very many cases. lower courts see a lot of them. if we look back at what they have been doing in general, would you say that they are doing -- that they are applying the statute appropriately? and consistent with correct interpretation? >> i would. ten circuits are applying the
more than de minimus standard. sometimes it has some bite. but to change it, with 8 will million potential ieps -- >> that sounds very harsh. what's the origin of this phrase, more than de minimus? who thought this up? >> it goes back to latin -- >> i know where de minimis comes -- >> justice invokes it in the wrigley case. it's an old formulation. >> who decided to apply it in this context? >> i think the court in rowley justice rehnquist's opinion invoekd that by talking -- says this is a presumption applying to statutes. >> who put the term, more than merely de minimis. that's the formula -- >> and de minimis is not enough. it is merely de minimis. >> and it is not in rowley. so where does it -- who invented
it? >> i think it came directly from the circuit right after rowley. all we are saying is some benefit means the more than de minimis test. that's the way court after court has interpreted it. it's worked well and this court shouldn't -- >> thank you. two minutes, mr. fish per. >> three point your honors. two about the statute and one about practicalities. first, as to the statute, the word procedural has been used by my friend to describe the iep provisions. whenever pressed, even he admit that iep provisions aren't enforceable in the way justice briar described, which is the plan has to meet the requirements of 1414-d and if the services on the ground don't meet the requirements of the plan they are enforceable. that's page 47-a of his brief -- and throughout the other -- >> answer justice alito's question. what's the practice today? >> pardon me? >> what's the practice today?
do most courts use the more than de minimus standard? >> yes. that brings to an important question on the ground and i will circle back to my other statutory point. >> before you do that -- putting aside -- i'll take ten seconds. putting aside the words, are the outcomes appropriate? or do you think the lower courts need a kick? >> i think they need a kick. i think the outcomes are quite scattered. i think the only reason why you get some favorable outcomes is because even the court themselves don't believe barely more than de minimis. i think you had a disjoint. my friend keeps pointing to the demecus briefs. amicus briefs. i think educators are by and large following. the no child left behind act in 2004 was a very important revolution fairy bipartisan policy change. so educators on the ground are aiming high as they put it. the city's brief says we are aiming to maximize benefit for student. you have a disjoint when educators and court. the reason there is a kick is because of a very, very, very, very rare case.
that makes it into the court system is not being properly reviewed. that leaves the last point to respond to. the fact that congress left this alone after rowley. what the court has said in rowley and honig and other case says that iep rules are quote the centerpiece of the act. the centerpiece for how the education delivery services are put forward. if you look at page 182 of rowley, the iep provisions are quite hollow. they didn't have any benchmarks at all. that has dramatically changed. they now have general educational benchmarks as briar has been referring to. and we repeatedly refer to in our brief. and i think mr. chief justice you agree cannot be met under their standard. that leaves the last little piece of the puzzle which is this child who cannot get up to grade level standard. we give you an answer to that question that is directly in the text in the act, just as my friend demands. alternative achievement benchmarks is what is required and that takes to you 79-a which gives you the exact statutory formula.
if you want to use that formula combined with general educational curriculum at grade level, we think that would be a proper answer to the question in this case. >> thank you, counsel. case is submitted. c-span voices from the road. we recently visited 17 historically black colleges and universities, asking students what issue would you like congress or the administration to address in the first 100 days. >> hello. my name is mia reaves, a student here at north carolina century university, and in trump's first 100 days in office, i would love for him to grasp understanding and that although we didn't all vote for him, we all are represented under him. and i would also like him to work on building and maintaining those relationships with other countries that we have developed over the years as our commander-in-chief. thank you. >> i am a senior here at grumd state university. what i would like to see for the first 100 days of the trump administration is just taking care of our schools, better their education. if anything, free education for
the schools and anything else. i would also like to see in the first 100 days better medicare, expanding obamacare as a start. as a student and as -- as a black man, i would like to see that, that. >> i'm a senior pr major here at howard university. in the first 100 days of trump's presidency, i would like for him and congress to address the issues with federal funding towards women services, because those -- that affects people like myself and other middle class and definitely lower class people. >> hi. my name is michael mangold, a junior. and for the first 100 days, i believe that trump should improve his immigration policy. i mean, for one, the muslim ban is -- i don't agree with the muslim ban, because for one, i have a friend who is muslim, and plus not all muslims are
terrorists. and as for the wall policy, i don't think it's going to work, either. i mean, i do believe that illegal immigration shouldn't -- it's an issue and all. but building a wall isn't going to help. >> my name is mea bar. i'm a communications major. i'm also a junior here at boyd state university. my message is to president donald trump. i know a lot of candidates make a lot of promises when running for president. but i would actually like him to lower the rate of unemployment. voices from the road. on c-span. in case you missed it, on c-span. francy haix for child exploit thanks prevention during the obama administration. >> i used to think the hardest thing i would ever have to do is look into the eyes of a child and listen to her story about being abused. i was wrong. the hardest thing i ever had to
do was watch their abuse. sometimes still photos, sometimes video, sometimes with sound. all heart-wrenching and even now impossible to forget. >> agriculture secretary nominee, sonny purdue. >> farmers are really struggling to be profitable, hold on and many times even the best farmers are not able to produce a product, even with the best production capabilities they may have. so i think trade is really the answer. >> msnbc's chris matthews at the first amendment awards dinner. >> the truth contained in hard news. the truth that arrives on the front page or in the street news broadcast. that's what contains the politician. that's what stops the overreach in power. and that's what the country takes seriously. and that's what matters this hour, this week, this time in our lives. >> treasury secretary, steve
unusualen. >> creating a middle income tax cut, creating personal tax simification and making u.s. businesses competitive. where we have a very high business tax rate and worldwide income. you know, we're able to take the tax code and redesign things. >> pfizer ceo, ian read on pharmaceutical costs. >> no one is using exchanges. the exchanges don't provide access. i think we do need to reform the health care the way it's delivered, and the consequences will be rapacious. >> and epa administrator, scott pruitt on environmental policy. >> there's childing things going on in respect to clean coal technology. exciting things going on in the nuclear space, but not here. host of that is happening in europe presently, because of the disincentives here in this country with respect to nuclear. if you really care about some of these environmental con